Thursday, January 5, 2012

City Journal's take on the California Redevlopment decision

I've been enjoying the outstanding posts on last week's landmark California Supreme Court ruling by Ken Stahl (here and here) and guest-blogger Stephen Miller (here and here) (I smell a great panel or symposium topic in the making).  Just now I came a cross an early analysis by Stephen Greenhut at City Journal, the always-interesting center-right urban affairs journal.  Greenhut has a strongly positive take on the decision in Crony Capitalism Rebuked California’s supreme court strikes a blow for property rights and fiscal sanity:

On December 29, the California Supreme Court handed down what the state’s urban redevelopment agencies (RDAs) and their supporters called a “worst of all worlds” ruling—first upholding a law that eliminates the agencies, then striking down a second law that would have allowed them to buy their way back into power. This was great news for critics who had spent years calling attention to the ways modern urban-renewal projects distorted city land-use decisions, abused eminent-domain policies, and diverted about 12 percent of the state budget from traditional public services to subsidies for developers, who would build tax-producing shopping centers and other projects sought by city bureaucrats. As of now, the agencies are history, though the redevelopment industry is working to craft new legislation that would resurrect them in some limited form.

Matt Festa

January 5, 2012 in California, Caselaw, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Local Government, Politics, Property Rights, Real Estate Transactions, Redevelopment, State Government | Permalink | Comments (1) | TrackBack (0)

Friday, December 30, 2011

Wolf on the Supreme Court and the Environment

51hoJRabZCL._SL500_AA300_Michael Allan Wolf (Florida) has a new book out called The Supreme Court and the Environment: The Reluctant Protector (CQ Press, 2012).  Here's the Amazon blurb:

Silent Spring (1962) can arguable be cited as one of the most influential books of the modern era. This book, along with 1960's rampant activism reacting to high-profile ecological calamities, helped create the modern environmental movement. The Supreme Court and the Environment, written by Michael Wolf, discusses one of this movement's most important legacies, namely the body of federal statutory law amassed to fight pollution and conserve natural resources that began with the enactment of the National Environmental Policy Act of 1969. Instead of taking the more traditional route of listing court decisions, The Supreme Court and the Environment puts the actual cases in a subsidiary position, as part of a larger set of documents paired with incisive introductions that illustrate the fascinating and sometimes surprising give-and-take with Congress, federal administrative agencies, state and local governments, environmental organizations and private companies and industry trade groups that have helped define modern environmental policy.

And for a preview, Prof. Wolf has posted the introduction on SSRN.  The abstract:

This document contains the Introduction and Contents for The Supreme Court and the Environment: The Reluctant Protector (CQ Press/Sage 2012). When one views the body of modern environmental law — the decisions and the other key documents — the picture that emerges is not one of Supreme Court dominance. In this legal drama, the justices have most often played supporting roles. While we can find the occasional, memorable soliloquy in a Supreme Court majority, concurring, or dissenting opinion, the leading men and women are more likely found in Congress, administrative agencies, state and local legislatures, nongovernmental organizations, private industry, and state and lower federal courts.

What one learns from studying the Supreme Court’s environmental law output is that the justices for the most part seem more concerned about more general issues of deference to administrative agencies, the rules of statutory interpretation, the role of legislative history, the requisites for standing, and the nature of the Takings Clause than the narrow issues of entitlement to a clean environment, the notion of an environmental ethic that underlies written statutes and regulations, and concerns about ecological diversity and other environmental values. When we widen the lens, however, and focus on the other documents that make up essential parts of the story of the Supreme Court and the environment — complaints by litigants, briefs by parties and by friends of the court, oral argument transcripts, the occasional stirring dissent, lower court decisions, presidential signing statements and press conference transcripts, media reports and editorials, and legislative responses to high court decisions — we discover what is often missing in the body of Supreme Court decisions.

 Looks fascinating, and is a very original take that situates the cases themselves within a broader context of Supreme Court jurisprudence and goes beyond to the larger networks of actors that shape law.

Matt Festa

December 30, 2011 in Books, Caselaw, Coastal Regulation, Constitutional Law, Environmental Law, Environmentalism, Federal Government, History, Judicial Review, Politics, Property Rights, Scholarship, Supreme Court, Takings, Wetlands | Permalink | Comments (0) | TrackBack (0)

Monday, December 5, 2011

Upcoming Oral Argument in PPL Montana, Inc. v. Montana

On Wednesday, the U.S. Supreme Court will hear one of the only cases that touches on property rights scheduled for this Term, PPL Montana, Inc., v. Montana.  Professor Thomas Merrill has posted an excellent preview of the case on SCOTUS blog:

On December 7, the Court will hear argument in PPL Montana, LLC v. Montana. The case is one for history buffs. The question is whether the state of Montana holds title to portions of three riverbeds in the state. The parties agree that the relevant legal test is historical: were the river segments in question part of a waterway that was “navigable in fact” when Montana became a state in 1889? Prominent among the many bits of historical evidence cited are the journals of Meriwether Lewis and William Clark, who explored the rivers in 1805 on their famous expedition.

That's enough to get me excited (seriously).  Go read the rest of Prof. Merrill's informative analysis.  (h/t to our friends at Property Prof Blog for the link).

And don't forget that we had our own pre-preview here at the Land Use Prof Blog, back on the day after the Court granted cert. From guest-blogger Tim Mulvaney's take on SCOTUS cert grant for PPL Montana v. Montana:

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide.

Should be very interesting.  Stay tuned.

Matt Festa

December 5, 2011 in Caselaw, Constitutional Law, Federal Government, History, Property Rights, Scholarship, State Government, Supreme Court, Takings, Transportation, Water | Permalink | Comments (0) | TrackBack (0)

Wednesday, November 30, 2011

Wal-Mart and Vested Rights or Wal-Mart in Athens Part II

So, today I waded into the local controversy about the possibility of a Wal-Mart in downtown Athens with an editorial in the local weekly. [Note - this article is no longer available on the original site, so this link is to a re-posted version.]  Specifically, I responded to media reports that the county attorney has said the developers have vested rights to develop the property based on the amount of money they claim to have spent on site preparation.  Now, Georgia has a pretty generous vested rights doctrine, but it's not that generous.  As in most states, you still have to have some kind of official assurance for rights to vest. Apparently now the county attorney doesn't want to talk about it, but other folks on both sides of the issue certainly have been.  

This type of controversy is not unique to Athens, apparently.  A casual perusal of media reports turns up vested rights controversies over proposed Wal-Marts in Hood River, Oregon, Leon County, Florida, San Antonio, Texas, and Abingdon, Virginia.  Is this some kind of trend?

Jamie Baker Roskie

 

November 30, 2011 in Caselaw, Community Economic Development, Development, Downtown, Georgia, Local Government, Planning, Politics, Property Rights, Zoning | Permalink | Comments (0) | TrackBack (0)

Monday, October 31, 2011

Bevilacqua: In Massachusetts, the Other Shoe has Dropped

Earlier in the year, I blogged about a decision (Ibañez) by the Massachusetts Supreme Judicial Court finding as invalid a land title claimed by a foreclosing bank that could not show that it held the mortgage at the time of foreclosure.  Prior to that ruling, a stated practitioners' standard recognized as curative post-foreclosure assignments of mortgages.  The Bevilacqua v. Rodriquez case presented the Court (previously blogged about here) with similarly sloppy handling of the mortgage assignments but also a third-party purchaser (and redeveloper) of the property from the foreclosing bank.   

Earlier this month, the Mass. SJC again found that the foreclosing bank had no title to transfer and that the title claimant's more sympathetic position with regard to the botched securitization process did not create title.  The Court dismissed his "try title" action and suggested that his equitable rights to the (as yet unforeclosed) mortgage might support a possible reforeclosure--a less than reassuring directive if the purchaser has invested in the property more than the lien value of the mortgage.  

Adam Levitin (Georgetown) submitted a winning A.C. brief in the Bevilacqua case.  His Credit Slips blog post on the decision can be found here. Congrats!

Jim K. 

October 31, 2011 in Caselaw, Financial Crisis, Mortgage Crisis, Mortgages, Property, Property Rights, Real Estate Transactions, Remedies | Permalink | Comments (0) | TrackBack (0)

Monday, October 17, 2011

Epstein on Judicial Takings in a Federalist System

Richard Epstein (NYU) has written Littoral Rights under the Takings Doctrine: the Clash between the Ius Naturale and Stop the Beach Renourishment, 6 Duke J. Const. L & Pub. Policy 37 (2011). He begins with the point that, due to the self-contradictory nature of judicial takings in a unitary court system, "the doctrine of judicial takings can, in practice, only arise in a federalist system." He goes on to argue for an appropriate deployment of centralized, federal oversight of state courts in defense of age-old, decentralized ius naturale. He sees Stop the Beach as a missed opportunity to invalidate years of Florida precedent as well as the Preservation Act that occasioned the controversy. He concludes that application of the judicial takings doctrine "should be limited to those circumstances in which the decided cases make a radical break from well-established common law patterns that systematically work for the advantage of the state or some identifiable private faction."

This article was published as part of a symposium on judicial takings that also included papers by Ilya Somin and Nestor Davidson.

Jim K.

October 17, 2011 in Caselaw, Environmental Law, Inverse Condemnation, Judicial Review, Property, Property Rights, Property Theory, Scholarship, Takings | Permalink | Comments (0) | TrackBack (0)

Monday, October 3, 2011

Somin on Blight Condemnations in New York after Goldstein and Kaur

Ilya Somin (George Mason) has posted Let there be Blight: Blight Condemnations in New York after Goldstein and Kaur, part of a February 2011 symposium “Taking New York: The Opportunities, Challenges, and Dangers posed by the Use of Eminent Domain in New York”, and published at 38 Fordham Urban Law Journal 1193 (2011). The abstract:

The New York Court of Appeals’ two recent blight condemnation decisions are the most widely publicized and controversial property rights rulings since the Supreme Court decided Kelo v. City of New London. In Kaur v. New York State Urban Development Corp., and Goldstein v. New York State Urban Development Corp., the Court of Appeals set new lows in allowing extremely dubious “blight” condemnations. This Article argues that the New York Court of Appeals erred badly, by allowing highly abusive blight condemnations and defining pretextual takings so narrowly as to essentially read the concept out of existence.

Part I briefly describes the background of the two cases. Goldstein arose as a result of an effort by influential developer Bruce Ratner to acquire land in Brooklyn for his Atlantic Yards development project, which includes a stadium for the New Jersey Nets basketball franchise and mostly market rate and high-income housing. Kaur resulted from Columbia University’s attempts to expand into the Manhattanville neighborhood of West Harlem. When some of the landowners refused to sell, Ratner and the University successfully lobbied the government to declare the land they sought to be blighted and use eminent domain to transfer it to them.

Part II addresses the issue of blight condemnation. Goldstein and Kaur both applied an extraordinarily broad definition of “blight” that included any area where there is “economic underdevelopment” or “stagnation.” In addition, the court opened the door for future abuses in three other, more novel, respects. First, it chose to uphold the condemnations despite evidence suggesting that the studies the government relied on to prove the presence of “blight” were deliberately rigged to produce a predetermined result. Second, it dismissed as unimportant the fact that the firm which conducted the blight studies had previously been on the payroll of the private parties that stood to benefit from the blight condemnations. Finally, the court refused to give any weight to extensive evidence indicating that Ratner and Columbia had themselves created or allowed to develop most of the “blight” used to justify the condemnations. The court’s approach opens the door to future abusive condemnations and violates the text and original meaning of the New York State Constitution.

Part III discusses Goldstein and Kaur’s treatment of the federal constitutional standard for “pretextual” takings. In Kelo and earlier decisions, federal courts made clear that “pretextual” takings remain unconstitutional despite the Supreme Court’s otherwise highly deferential posture on “public use.” Unfortunately, the Supreme Court has been extremely unclear as to what constitutes a pretextual taking. As a result, courts have taken widely differing approaches to the issue. Nevertheless, Kaur and Goldstein are outliers in this area, deferring to the government more than almost any other court that has addressed the question since Kelo. They virtually read the concept of pretext out of existence.

Looks like another insightful piece on this still-controversial subject.

Matt Festa

October 3, 2011 in Caselaw, Conferences, Constitutional Law, Development, Eminent Domain, New York, Property Rights, Redevelopment, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Sunday, October 2, 2011

Land Use at the Supreme Court, Part I

This month begins a term at the U.S. Supreme Court in which the Court will hear two important cases concerning land use. The cases turn on very different doctrinal issues. One concerns rights and remedies under the Administrative Procedure Act. The other involves an actual property issue, namely whether a state has title to a river bed arising out of application of the navigable waterway doctrine. In most ways, the cases could not be more different. Yet they are connected by one common theme. Both cases demonstrate the dangers—to landowners and governments alike—when a government entity is both a party interested in the outcome of a land use dispute and the authority charged with adjudicating the dispute.

The first case is Sackett v. EPA. According to their counsel, the Sacketts planned to build their dream home near (but not adjacent to) a lake in Idaho. They acquired the necessary local permits and received the assurance of the U.S. Army Corps of Engineers that no federal permits were required. They had begun preparations to build when EPA showed up, insisting that the lot was situated on wetlands (the putative wetland area is separated from the lake itself).

As commentators on both the Left and the Right have observed, the factual question whether the Sacketts’ land is part of nearby wetlands is contestable. But the Sacketts have no way of contesting EPA’s contention unless and until EPA seeks enforcement of an order against them in federal court; two lower federal courts ruled that federal law provides no mechanism for a pre-enforcement challenge. As the Sacketts’ counsel pointed out, this situation left the Sacketts with an “unenviable choice.” They could apply for a permit that they believe they are not required to obtain and pay the associated costs. Or they could expose themselves to an enforcement action and the associated fines, which could run over $30,000 per day. Either way, they would incur inordinate expense to build on a lot that they purchased for $23,000.

This Hobson’s choice for the Sacketts rendered EPA the de facto adjudicator of their rights. And had a public interest litigation group not come to their aid, the Sacketts would have been at the mercy of a federal administrative agency that served as investigator, prosecutor, judge, and jury. Because the Court has agreed to hear the Sacketts’ claim not under the Clean Water Act but under the broader Administrative Procedure Act, the implications of the Court’s ruling could reach far. Jonathan Adler has speculated, “While this case focuses on the Clean Water Act’s ACO regime, the cert grant makes clear that it will have broader application to laws that employ similar enforcement mechanisms, including the Clean Air Act and Superfund.”

The second case is PPL Montana LLC v. Montana. The certified question can excite only a Property professor.

Does the constitutional test for determining whether a section of a river is navigable for title purposes require a trial court to determine, based on evidence, whether the relevant stretch of the river was navigable at the time the State joined the Union as directed by United States v. Utah, 283 U.S. 64 (1931), or may the court simply deem the river as a whole generally navigable based on evidence of present day recreational use, with the question “very liberally construed” in the State’s favor?

According to the pleadings, the case arose when the State of Montana decided to claim title in riverbeds that had long been used by a private landowner, namely a power company using the river to generate hydroelectricity. Montana became a state in 1889. Two years later, in 1891, a predecessor-in-title to the power company built a dam near Fort Benton, Montana on the Missouri River, apparently believing that this stretch of the river was not navigable, and that the State of Montana therefore had no title in it. More dams were built on the Missouri and Madison Rivers, and the State, no doubt benefiting from this land use, did not object. Indeed, the State participated in the licensing proceedings for some of the dams.

Then, in 2004, the State of Montana, piggybacking on a lawsuit filed by parents of Montana school children, claimed that it had owned title to the riverbeds all along because the contested stretches of river are navigable. The Montana Supreme Court ruled for the State and upheld a judgment of $41 million in back rent. 

In this case, the government actor advocating on behalf of the state—the Montana Attorney General—is distinct from the state courts that adjudicated the claim. But the central issue in the case turns on a disputed, mixed question of fact and law. And about this question the Montana state courts showed strikingly little curiosity. Despite 500 pages of expert testimony and exhibits disputing the State’s assertion of navigability, the Montana Supreme Court affirmed the trial court’s entry of summary judgment for the State. The Montana courts appear to have simply accepted the Montana Attorney General’s proposed findings.

It is now increasingly common for states and federal agencies to advocate for particular outcomes of private land use proposals. I intend to explore some of the implications of this trend at length in later posts. But in short, whatever its benefits, this advocacy entails significant costs. And these costs are not borne only by landowners. I will argue that the governmental authorities themselves pay a price, because they risk damaging their reputations as impartial ministers of law.

Adam MacLeod

Update: David Breemer of the Pacific Legal Foundation (PLF) comments below. As I should have noted, PLF is the public interest firm representing the Sacketts.

October 2, 2011 in Caselaw, Federal Government, Judicial Review, State Government, Supreme Court | Permalink | Comments (2) | TrackBack (0)

Friday, September 16, 2011

Brooke Shields as Susette Kelo

Coming to the small screen. From the Hartford Courant: Brooke Shields To Star In Movie Based On New London Eminent Domain Case; Author Jeff Benedict Announces Deal On His Blog

"Little Pink House: A True Story of Defiance and Courage," a book written in 2009 by Jeff Benedict about the Fort Trumbull eminent domain decision in New London, is being made into a Lifetime TV movie starring Brooke Shields as the decision's most prominent opponent, Susette Kelo, according to an announcement made Friday on the author's blog, http://www.jeffbenedict.com.

Rick Woolf, Benedict's editor at Grand Central Publishing, confirmed the report. "We're thrilled that this is going to be a movie on Lifetime," Woolf said. "Susette is a folk hero and Jeff has done a tremendous job telling the story."

Wonder if they'll get John Cougar Mellencamp's permission to use "Pink Houses" for the soundtrack. Thanks to Jason Kercheval for the pointer.

Matt Festa

September 16, 2011 in Caselaw, Constitutional Law, Economic Development, Eminent Domain, Humorous, Property Rights, Redevelopment, Supreme Court, Takings | Permalink | Comments (1) | TrackBack (0)

Thursday, September 8, 2011

City of South Bend Enjoined by U.S. District Court from Transferring Land to Catholic HS

The South Bend Tribune reports that U.S. District Judge Robert Miller (NDIN) has granted a preliminary injunction sought by four local residents represented by the ACLU of Indiana. The plaintiffs object to the transfer of the former Family Dollar site, recently bought by the City for $1.2 M, to a local CDC that would turn it over to St. Joseph High School, a co-ed Catholic school which would use it for athletics and parking and had committed to accomodate requested public use for 10 years.  (FD: my two older children recently began attending St. Joseph High School here in South Bend, shortly after I began my new post here at Notre Dame.)  The local council had approved the acquisition and transfer on a 5-4 vote.

In the opinion, Judge Miller agrees with the plaintiffs that the transfer constitutes a direct subsidy to a religious institution in violation of the First Amendment's Establishment Clause.  The Court distinguished recent school voucher program precedent by emphasizing that the below-market transfer by the City is not part of a program with religion-neutral criteria.  To me, this point about the ad hoc nature of public-to-private land transfers makes the opinion an interesting land use case.  It raises the question:  Are religious institutions quarrantined from economic development land transfers even though (as the Court agrees) they are not from public benefits generally?    

Related to this point is the nature of the endorsement of (a?) religion.  With the qualification that I am not a First Amendment scholar, I did note that the Court found that the transfer violated the second prong of the Lemon test (you know, whether the action's primary effect is to advance/inhibit religion) Even though neither the City nor the plaintiffs thought the issue determinative, the Court disagreed. The Court implied in its ruling that the proposed transfer sends a message to adherents and non-adherents that they are insiders and outsiders respectively.  Was that part-and-parcel of the Court's distinction between programmatic and ad hoc public subsidies?

I would be glad to hear from you. I will be following the developments with not-just-an-academic interest.

 

Jim K.

J.Kelly@nd.edu

September 8, 2011 in Caselaw, Constitutional Law, Economic Development, First Amendment, Judicial Review, Local Government, Redevelopment | Permalink | Comments (0) | TrackBack (0)

Sunday, August 14, 2011

Texas Case Restricts City Admin Boards from Abating Blight without Just Compensation

The Texas Supreme Court recently issued an opinion that makes some new law in the crucial and evolving area of individual property rights versus local governments' objectives of abating blighted properites. From The Examiner newspapers, The Hazard Next Door: Texas Ruling Restricts Cities from Eliminating Blighted Structures.

The case, City of Dallas v. Heather Stewart, involved a situation similar to the one involving Thurmond. A city of Dallas board recommended that a long-dilapidated home be demolished. The city did that, but the owner, Stewart, sued in district court, saying the city had unlawfully taken her property. At trial, the jury ruled in her favor, and Stewart was awarded her $75,707.67 for the destruction of her home.

Dallas appealed the case to the Texas Supreme Court, which ruled July 1. In the majority opinion, Chief Justice Wallace Jefferson acknowledged that cities “must be able to abate dilapidated structures” that “threaten neighborhoods.” But, Jefferson wrote, cities must set up a mechanism to address that threat that complies with Texas constitutional mandates that protect private property rights.

“Today we hold that a system that permits constitutional issues of this importance to be decided by an administrative board, whose decisions are essentially conclusive, does not correctly balance the need to abate nuisances against the rights accorded to property owners under our constitution,” Jefferson wrote, adding that independent review of a court is necessary.

Particularly in light of the foreclosure crisis, this type of decision could seriously handcuff local governments trying to make a difference in the current context; on the other hand, even though the facts of this case are unsympathetic, there still is an important constitutional right to just compensation. I wasn't tracking the case until after it came out and the reporter called, but it seems that it has already chilled similar local government actions here in Houston, and should be noted by public administrators across the US.

Matt Festa

August 14, 2011 in Caselaw | Permalink | Comments (0) | TrackBack (0)

Thursday, August 4, 2011

Texas Supreme Court abates Severance v. Patterson

I was on the road for about a month with very little internet access (more on that to come).  Fortunately, my land use students keep me up to date on things.  Late last week I learned from my student Sonny Eckhart that the Texas Supreme Court issued its latest, and perhaps last, ruling in the Severance v. Patterson case that we've been following here on the blog, "abating" the case until the Fifth Circuit rules on the issue of mootness.  I asked him to write it up for our readers, and here's what he has to say:

For those who have been following the Open Beach Act Litigation in Severance v. Patterson: warning, you might be a little disappointed.  The Severance case is a challenge to the Texas Open Beaches Act, where Galveston Island homeowner Carol Severance brought suit against the Texas Attorney General and other state officials over the central issue of whether private beachfront properties on Galveston Island have redress when a public beach access easement is “rolled” onto private property when the vegetation line migrates landward.  Needless to say, this has caused a stir in the courts and among legal scholars.  During this process, the Land Use Prof Blog has provided several discussions and updates on the long-running dispute. See here, here, here, herehere, and here.

On November 5, 2010, the Texas Supreme Court issued their opinion concluding public easements do not always “roll” with the beachfront.  Most notably, the court distinguished between a change or avulsion caused by a natural event, such as a hurricane, and a “gradual change.”It would appear that Carol Severance had won a substantial victory.  To combat this, the State filed a motion for rehearing—a motion that held the support of several amicus groups.  The court granted rehearing in Severance and heard arguments four months ago, in April. 

The facts of the case took an unexpected turn a few weeks ago when Carol Severance sold her property in Galveston, and thus may have rendered the legal action moot.  The State acted quickly and filed a motion to vacate the November 2010 opinion before sending this matter back to the Fifth Circuit.  Both parties submitted briefs on the issue of mootness.  See State’s brief on mootness; Severance’s brief on mootness.  Last Friday, July 29, the court issued an order that abated the case until the Fifth Circuit first reviewed the issue of mootness.  The order in this case abates the Texas Supreme Court appeal until the jurisdictional issues can be decided. 

Is This The End?

Find out after the jump!

Continue reading

August 4, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Judicial Review, Property, Property Rights, Property Theory, State Government, Takings, Texas | Permalink | Comments (1) | TrackBack (0)

Wednesday, July 6, 2011

Mulvaney guest-blog on Severance's latest development: Mootness?

[This guest post is from Prof. Timothy Mulvaney (Texas Wesleyan), whom we've featured here before for his scholarship and commentary on judicial takings and on Severance v. Patterson--on which he hosted an excellent program in March.  Here are his thoughts on the latest development in the case.  Thanks!--Matt Festa]

The Land Use Prof Blog previously has included several entries on the long-running dispute regarding the Texas Open Beaches Act in the case of Severance v. Patterson (see here, here, here, here, and here).  The case took yet another surprising turn last week when the plaintiff sold the last remaining property at issue in the suit. 

At the filing of the complaint in 2006, the lawsuit involved three residential gulf-front properties owned by plaintiff Carol Severance.  Following 2005’s Hurricane Rita, these properties ended up seaward of the vegetation line; after Rita, that is, Ms. Severance’s properties were composed almost entirely of dry sand beach.  Ms. Severance challenged the State’s policy of removing homes that, due to erosion or coastal storms, now rest within the public’s “rolling” beach access easement. 

In a 6-2 decision in November of 2010 on three certified questions from the Fifth Circuit, the Texas Supreme Court largely sided with Ms. Severance.  The Court distinguished between (1) an easement destroyed by an avulsive event—which the majority held does not “roll” upland, such that the state must prove that a public easement across the “new” strip of beach adjacent to the post-Rita mean high water line has been established by custom, dedication, or prescription in each individual case, including Ms. Severance’s—and (2) an easement destroyed by imperceptible erosion—which the majority held does “roll” upland. 

Yet in March of this year, the Court, at the request of the State and nearly two dozen amici, took the rather extraordinary step of deciding to re-hear the case.  The Court ultimately conducted a second round of oral argument in April.  Yet just last week, with the re-hearing decision pending, Ms. Severance sold the third and final property subject to the litigation (she had sold the other two properties several years earlier).

Upon receiving notice that Ms. Severance sold this last remaining property (notably, through a FEMA-funded buy-back program administered by the City of Galveston on the final day that she could avail herself of that option), the State immediately sent a letter to the Court suggesting that (1) the case is moot, and (2) the Court “should follow the established practice of vacating the latest opinion [the November 2010 opinion] before returning this matter to the Fifth Circuit.”  Otherwise, said the State, the Court would be authorizing “a prevailing party to obtain through unilateral action what it was unable to accomplish in opposing a rehearing motion or a petition for review. … [the Court should not] permit an opinion to stand, by default, that was under active reconsideration.”

Counsel for Ms. Severance, David Breemer of the Pacific Legal Foundation, responded with a letter stating that the case is not moot because: (1) mootness cannot permit the state “to avoid a controversy over its property restrictions” by using those same controversial restrictions to force Ms. Severance to sell; (2) Ms. Severance owns another property in Galveston that was not included in her 2006 complaint but that is now subject to the State’s rolling easement policy; and (3) “there are ongoing personal and legal consequences to Severance” for which the Court can fashion a remedy. 

In his letter, Mr. Breemer requested that the Court issue an expedited briefing schedule on the mootness issue.  The Court obliged.  The State filed its brief today, and Ms. Severance’s response is due next Tuesday.  Stay tuned to the Land Use Prof Blog for updated information on Severance v. Patterson.

Timothy Mulvaney

July 6, 2011 in Beaches, Caselaw, Coastal Regulation, Constitutional Law, Environmentalism, Politics, Property Rights, State Government, Takings, Texas, Water | Permalink | Comments (0) | TrackBack (0)

Tuesday, June 21, 2011

Mulvaney's take on SCOTUS cert grant for PPL Montana v. State of Montana

I'm excited to post this guest blog from Professor Timothy Mulvaney, a land use prof from Texas Wesleyan School of Law in Fort Worth.  He's written extensively about judicial takings and exactions, and proivdes this timely and interesting post about yesterday's U.S. Supreme Court cert grant.  This case has been somewhat under the radar, but could end up being very important.  Thanks to Tim for the early and interesting analysis-- Matt Festa

Thank you very much for the opportunity to guest blog during this important week at the U.S. Supreme Court.

It is understandable that today’s headlines regarding the Supreme Court are devoted to several landmark decisions released yesterday, including rulings rejecting class certification in Wal-Mart v. Dukes and holding that the Clean Air Act displaces federal common law nuisance claims when it comes to greenhouse gas emissions in AEP v. Connecticut.  But in addition to these major holdings, the Supreme Court also took the noteworthy step of granting certiorari in PPL Montana, LLC v. State of Montana.  This case could have important implications for property, land use, natural resources, and environmental law.

In 2010, the Montana Supreme Court held that the State of Montana owns the beds of the Missouri, Madison, and Clarke Fork Rivers as an incident of state sovereignty. This ruling confirmed that PPL Montana is required to pay over $40 million in back-rent, as well as yet-to-be-determined future rent, for use of the rivers to generate hydroelectric power.  PPL Montana claims that the riverbeds are private property, such that no rent to (or approval from) the State is necessary to conduct their operations.  To determine whether these rivers are held in trust by the State or rather in private ownership turns on whether the rivers are considered “navigable.”  The U.S. Supreme Court has defined waterways as “navigable” in the context of such a title dispute if the rivers were “used, or [were] susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel [were] or may be conducted” when the relevant State was admitted to the Union.

In finding that all three rivers at issue met this “navigability for title” test when Montana entered statehood in 1889, the Montana Supreme Court cited to a litany of historical evidence, including the centuries-old journals of Lewis and Clark.  As today’s brief AP story notes, PPL Montana disagreed, pointing “to accounts of the [Lewis and Clark] expedition’s arduous portages of canoes and supplies around waterfalls to argue that the contested stretches of water were not navigable.”  The Montana Supreme Court’s opinion also drew PPL Montana’s ire by considering what the company alleges are flawed contemporary studies, as well as recent recreational uses of certain stretches of the rivers, to support the finding that the rivers are held in total by the state in trust for present and future generations.

One of the foremost experts in natural resources and water law, Professor Rick Frank, notes on Legal Planet that the U.S. Supreme Court has not addressed navigability in the context of state public trust claims for several decades.  How the Supreme Court interprets its time-honored test and identifies what evidence is relevant in its application could have major ramifications for thousands of miles of inland lakes and waterways nationwide. 

Yet there may be another issue lurking under the surface.  In seeking the Supreme Court’s review, PPL Montana and several of its amici sought to frame the Montana Supreme Court’s decision as a “judicial taking.” You will recall that in the 2010 case of Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection, the U.S. Supreme Court left the existence and scope of a judicial takings doctrine in a state of flux.  To cull from a law review article I authored on Stop the Beach this past winter:

A four-Justice plurality endorsed a novel theory that would make the Takings Clause applicable to a wide collection of state court interpretations of state property law. Writing for the plurality, Justice Scalia declared that a state court’s opinion finding that an “established” property right “no longer exists” may amount to an unconstitutional taking.  … Justice Kennedy, joined by Justice Sotomayor, wrote separately to suggest that only when the Constitution’s Due Process Clause proves “somehow inadequate” to protect landowners from the judicial elimination of their existing property rights should the questions surrounding the need for and scope of a judicial takings doctrine be addressed.  … Though generally expressing grave doubts about the plurality’s judicial takings standard, Justice Breyer, joined by Justice Ginsburg, concurred in the judgment but found the issue of judicial takings “better left for another day.” [Justice Stevens recused himself.]

In its petition for certiorari, PPL Montana cited to Stop the Beach in asserting that, “[b]ecause [the Montana Supreme Court was] the operative force behind this land transfer [from private ownership to state ownership], it remains to be seen whether property owners in general have a Takings Claim or due process objection to [such a] land grab.”  In support of PPL Montana’s petition, the Cato Institute joined the Montana Farm Bureau Federation in contending that the Montana Supreme Court adopted a retroactive rule that destroyed title already accrued in violation of the Takings Clause, calling the Court’s ruling a “thinly-disguised judicial taking.”  For its part, the State of Montana maintained that nothing in the Montana Supreme Court’s decision contravened established property law, for PPL Montana’s “deeds and pleadings show it has no riverbed property to take” and the State “has claimed and received compensation for uses of navigable riverbeds for decades.” 

It remains to be seen whether the U.S. Supreme Court will address the judicial takings question when it takes up PPL Montana, LLC v. State of Montana in the coming year.  The certiorari stage documents are available here.  It is anticipated that the parties and their amici will brief the case this summer, with oral argument likely to occur in the winter.  Stay tuned to the Land Use Prof Blog for updated information.

Timothy Mulvaney

June 21, 2011 in Caselaw, Constitutional Law, Federal Government, Judicial Review, Property Rights, Scholarship, State Government, Takings | Permalink | Comments (0) | TrackBack (0)

Supreme Court News

It's been a big week at the U.S. Supreme Court; as we get closer to the end of the Term, decisions are rolling out.  Some big cases came out yesterday, plus news of what might be a significant land use case in the next Term. 

Among yesterday's decisions was American Electric Power Co. v. Connecticut, which held: "The Clean Air Act and the EPA action the Act authorizes displace any federal common-law right to seek abatement of carbon-dioxide emissions from fossil-fuel fired power plants."

Also, Wal-Mart Stores, Inc. v. Dukes et al.  This case is not land use per se--it's a class action employment issue--but anyone involved in land use knows that Wal-Mart's fortunes are an important fact in the field.  The Wal-Mart Wars involve a distillation of many of the major land use issues in current events.  I was also pleased that the opinions extensively cited the expertise of the late Prof. Richard Nagareda, who inspired me as a scholar and teacher.  Thanks to Troy Covington for the pointer.

In addition to these and other important opinions from the 2010 Term, the Court also granted cert yesterday to what might turn out to be a very important land use case.  We are fortunate to have a timely guest-post on that, which I'll post next (scroll up!). 

Matt Festa

June 21, 2011 in Caselaw, Constitutional Law, Environmental Law, Federal Government, Nuisance, Oil & Gas, State Government, Supreme Court | Permalink | Comments (1) | TrackBack (0)

Wednesday, June 8, 2011

Romero on Race and Place from Berman & Brown to Kelo & Parents Involved

Tom Romero (Denver) has posted Kelo, Parents and the Spatialization of Color (Blindness) in the Berman-Brown Metropolitan Heterotopia, 2008 Utah L. Rev 947 (2008). Here's the abstract:

The article uses the 1954 eminent domain and school integration decisions in Berman v. Parker and Brown v. Board of Education and the more recent Kelo v. New London and Parents Involved in Community Schools v. Seattle School District cases to examine the rise of the multiracial metropolis in the United States. By linking and concomitantly exploring the United States Supreme Court’s eminent domain and school desegregation decisions, the article offers a fundamentally new approach to understanding the consequence and import of these decisions in managing property and race relations in the contemporary United States.
Analytical emphasis on the period extending from Berman-Brown through the Kelo-Parents decisions is especially important for two reasons. First, this era dramatically perfected the ability of the state to define as well as manage property and race relations. A coherent vision of well-ordered and sufficiently contained metropolitan space - represented through eminent domain and other municipal land use powers as well as through school desegregation jurisprudence - both propelled and sustained this order. Second, and intricately related is the paradox of color-consciousness and color-blindness during this period. Particularly as the nation’s racial anxieties played themselves out on a global and increasingly multiracial scale through school integration battles, land use law and takings jurisprudence obscured the multicolor segregation taking place in many of the fastest growing metropolitan areas. Together, the novel effect of each of these landmark decisions put into question the viability of a de jure-de facto distinction that became sacrosanct in American constitutional law.
This article utilizes interdisciplinary methodology and resources to describe the manner by which legally enforced color lines on a local scale became paradoxically proscribed, yet essential to what I call the multi-racial heterotopia. As a consequence of scholars largely having failed to make the link between eminent domain and school integration jurisprudence in the construction of the modern metropolitan United States, the article makes a timely and important intervention to the combined analysis of these most recent Supreme Court cases.

Jim K.

 

June 8, 2011 in Caselaw, Constitutional Law, Race | Permalink | Comments (0) | TrackBack (0)

Saturday, June 4, 2011

Somin on Stop the Beach and Judicial Takings

Ilya Somin (George Mason) has posted another timely article, Stop the Beach Renourishment and the Problem of Judicial Takings, forthcoming in Vol. 6 of the Duke Journal of Constitutional Law & Public Policy (2011).  The abstract:

Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection was the Supreme Court’s first effort to address the problem of judicial takings: whether or not a judicial decision can ever qualify as a taking that requires compensation under the Takings Clause of the Fifth Amendment. Unfortunately, a divided Court failed to resolve the issue, which is now left for future cases.

This article argues that judicial takings do exist. I also explain why this conclusion would not require federal courts to take on any unusual administrative burdens. Part II briefly discusses the background of Stop the Beach. In Part III, I defend Justice Antonin Scalia’s conclusion that “the Takings Clause bars the State from taking private property without paying for it, no matter which branch [of government] is the instrument of the taking.” This principle follows logically from both the text and the original meaning of the Fifth Amendment. Various rationales for distinguishing judicial takings from other takings do not overturn this simple but sound conclusion.

Part IV addresses claims that enforcing a takings doctrine would lead federal courts into severe practical difficulties. A judicial takings doctrine would not require legal principles significantly different from or more complicated than other takings claims. Justice Stephen Breyer and others are wrong to suggest that such a doctrine would “invite a host of federal takings claims” that federal judges would be unable to handle.

Matt Festa

June 4, 2011 in Caselaw, Constitutional Law, Judicial Review, Property Rights, Scholarship, Supreme Court, Takings | Permalink | Comments (0) | TrackBack (0)

Tuesday, May 31, 2011

Somin on State Court Limits on Eminent Domain since Kelo

Ilya Somin (George Mason) has posted The Judicial Reaction to Kelo, 4 Alb. Gov't L. Rev 1 (2011). Here's the abstract:

Kelo v. City of New London was one of the most controversial decisions in Supreme Court history, generating a massive political backlash that led 43 states to adopt eminent domain reform laws restricting economic development takings of the kind the Court ruled were constitutional. In addition to the better-known legislative reaction, Kelo was also followed by extensive additional property rights litigation in both federal and state courts. This is the first article to systematically analyze the judicial reaction to Kelo.
Part I briefly summarizes Kelo and its holding. Part II considers state court interpretations of their state constitutional public use clauses since Kelo. Most of these cases have repudiated Kelo, either banning economic development takings outright or significantly constraining them. Part III considers judicial interpretations of Kelo’s “pretext” standard. This is the one area where Kelo might potentially permit nontrivial public use constraints on condemnation. Kelo indicated that condemnations are unconstitutional if the officially stated rationale for the taking is a pretext “for the purpose of conferring a private benefit on a particular private party.” State and lower federal courts have not come to any consensus on what qualifies as a pretextual taking. Nevertheless, several decisions suggest that the pretext standard may have some bite.
Overall, state courts have taken a skeptical view of Kelo, often rejecting it as a guide to the interpretation of their state constitutions. This reaction continues the pre-Kelo trend of increasing judicial protection for property rights at the state level.

The article introduces a symposium issue entitled Eminent Domain in the United States: Public Use, Just Compensation, & “The Social Compact.” Published participants include Steven Eagle, Gideon Kanner and Amy Lavine.

Jim K.

May 31, 2011 in Caselaw, Community Economic Development, Constitutional Law, Development, Economic Development, Eminent Domain, Judicial Review, Property, Property Rights, Redevelopment, Scholarship | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 25, 2011

Power's Creative Commons Casebook: A Land Use Treasure

Garrett Power (Maryland) has posted the 2011 edition of Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions.  Matt blogged about the 2010 edition within days of it being posted last Fall.  Garrett's use of non-copyrighted case opinion and statutory materials makes for a wonderful land use teaching resource whether or not it is a course's principal casebook.  Here's the abstract:

The casebook, which is electronically published in PDF format, is a part of the E-scholarship Repository of the University of Maryland School of Law. It consists of non-copyrighted material and is intended for classroom use. Professors and students are free to use it in whole or part. As the Table of Contents indicates, 170 odd cases have been grouped into 36 "sessions." Most sessions consist of four or five tightly-edited cases and the related statutes, if any. The readings are intended to be historically, economically, politically, and legally evocative; they are designed to provide an assignment appropriate for a 55 minute class discussion. The complication is approximately 1100 pages in length. It is updated annually.

Jim K.

May 25, 2011 in Caselaw, Judicial Review, Planning, Zoning | Permalink | Comments (0) | TrackBack (0)

Thursday, May 5, 2011

Massachusetts SJC Hears Arguments in Bevilacqua (and so can you)

The Massachusetts Supreme Judicial Court heard oral arguments Monday in a foreclosure title case called Bevilacqua v. Rodriguez. Earlier in the year, I blogged about the Court's Ibanez opinion invalidating a bank's foreclosure title based on a botched securitization. Bevilacqua concerns the validity of the title claim of a foreclosure sale purchaser. In the Land Court proceedings below, U.S. Bank was unable to establish its ownership of the underlying loan leading to a declaration that the foreclosure and sale left the original owner's title unaffected.

In addition to video of the oral arguments (brought to you by the good folks at Suffolk Law), the SJC website features an amicus brief supporting the decision below submitted by Adam Levitin (Georgetown) and three other leading real estate law professors. If the Court agrees with these prominent academics that "U.S. Bank, N.A. was no more capable of passing good title to the Rodriguez property than a common thief", then the decision could have broad implications for titles coming out of nonjudicial mortgage foreclosures in Massachusetts and possibly many other states. But, that would only happen if slapdash securitizations turned out to have been somewhat commonplace. The Court should issue a ruling in the next few months.

Jim K.

May 5, 2011 in Caselaw, Finance, Financial Crisis, Mortgage Crisis, Mortgages, Property, Property Rights, Real Estate Transactions, Remedies | Permalink | Comments (0) | TrackBack (0)